Dismissed

Brij Gopal Sharma S/O Shri Shankar Lal Sharma v. Surveer Singh S/O Vijay Singh

Rajasthan HC10 Apr 2023CSA/73/2020

Case brief

AI extract

What is this about?

In this civil second appeal against a judgment dismissing a suit for permanent injunction regarding obstruction of a public way, the High Court held that the lower courts' findings were not erroneous. The Court ruled that a Site Commissioner's report appointed under Order 26 Rule 9 CPC did not require formal proof under the Evidence Act. Finding no substantial question of law, the appeal was dismi

What did the court decide?

The civil second appeal is dismissed with no substantial question of law found; the impugned judgment and decree are affirmed.

Brij Gopal Sharma S/O Shri Shankar Lal Sharma Vs… — Property and Title | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 73/2020

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Brij Gopal Sharma S/o Shri Shankar Lal Sharma, Resident Of Vijaypada, Rampura, Kota

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----Plaintiff-Appellant

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Versus

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Surveer Singh S/o Vijay Singh, Resident Of Chanchal Vihar, Near Maharana Circle, Kunhari, Kota

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Raghuveer Singh S/o Vijay Singh, Resident Of Chanchal Vihar, Near Maharana Circle, Kunhari, Kota

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Sanju Sharma S/o Ramgopal, Resident Of Chanchal Vihar, Near Maharana Circle, Kunhari, Kota

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----Defendants-Respondents

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For Appellant(s) : Mr. Ran Vijay Singh for Mr. Anil Mehta, Sr. Adv. For Respondent(s) :

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HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

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Order

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10/04/2023

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This civil second appeal is preferred by the unsuccessful appellant/plaintiff (for brevity, “plaintiff”) against the judgment and decree dated 17.10.2019 passed by the learned Additional District Judge No.4 Kota (for brevity, “the learned Appellate Court”) in Civil First Appeal No.5/2016 (CIS No.39/2016) whereby, while dismissing the appeal, the judgment and decree dated 26.03.2016 passed by the learned Civil Judge No.1, Kota (for brevity, “the learned trial Court”) dismissing the Civil Suit No.82/2002 filed for permanent injunction, has been affirmed.

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The relevant facts in brief are that the plaintiff filed a suit for permanent injunction against the respondents/defendants (for

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[CSA-73/2020]

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(2 of 3)

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brevity, “defendants”) with the averments that they wanted to obstruct his right to use the subject-public way leading to his residential house being used by him for last about 20 years. The defendants in their joint statement submitted that the subject land was agricultural in nature, which has not been converted till date for residential use in absence whereof, contention of the plaintiff cannot be accepted.

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On the basis of pleadings of the parties, the learned trial Court framed six issues including relief. After recording evidence of the plaintiff as the defendants did not lead any evidence, the learned trial Court dismissed the suit vide its judgment and decree dated 26.03.2016 which has been upheld and affirmed by the learned appellate Court vide its judgment and decree dated 17.10.2019.

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Assailing the impugned judgment and decree dated 17.10.2019, learned counsel for the appellant submits that he was able to establish from his oral evidence that he has right of way to reach is residential house through the subject-public way which was being obstructed by the defendants. He further submits that the learned Courts erred in relying upon the Court Commissioners’ Report, which was not proved in accordance with the provisions of Evidence Act. He, therefore, prays that the civil second appeal be allowed, the judgment and decree dated 17.10.2019 be quashed and set aside and the suit filed by him for permanent injunction be decreed.

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Heard. Considered.

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While deciding the Issue No.1, appreciating oral as well as documentary evidence led by the plaintiff, learned trial Court has

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[CSA-73/2020]

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(3 of 3)

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recorded a categorical finding that the plaintiff has not been able to establish existence of the subject-public way towards eastern side of his house which was being used by him for last about 20 years creating easementary rights over it. It was held that while, S/Shri Shambhudayal (PW-2), Baksuram (PW-3), Purushotta (PW4) & Rajesh (PW-5) did not appear in the witness-box for crossexamination, from the testimony of plaintiff (PW-1) and other plaintiff’s witnesses, it could not be established that there was any way towards eastern side of plot of the plaintiff. These findings of facts have been upheld by the learned Appellate Court. Learned counsel for the plaintiff failed to satisfy this Court that the aforesaid findings of facts suffer from illegality, infirmity or perversity.

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In so far as second submission of the learned counsel for the plaintiff is concerned qua the Commissioner Report, since, the Site Commissioner was appointed by the learned trial Court under the provisions of Order 26 Rule 9 CPC, it’s formal proof under the provisions of Evidence Act was not required in view of the provisions of the Order 26 Rule 10(2) CPC.

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In view of the aforesaid factual backdrop, in the considered opinion of this Court, learned Courts did not err in dismissing the suit filed by the plaintiff for permanent injunction.

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Since, the civil second appeal is devoid of any substantial question of law, the same is dismissed accordingly.

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(MAHENDAR KUMAR GOYAL),J

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Sudha/73

Brij Gopal Sharma S/O Shri Shankar Lal Sharma v. Surveer Singh S/O Vijay Singh

Case brief

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Brij Gopal Sharma S/O Shri Shankar Lal Sharma v. Surveer Singh S/O Vijay Singh

Case brief

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